Delhi District Court
State vs . Suresh Kumar Sahu on 14 January, 2013
IN THE COURT OF SH. DHIRENDRA RANA: METROPOLITAN
MAGISTRATE02/WEST : DELHI
STATE Vs. Suresh Kumar Sahu
FIR No. : 194/08
U/SEC : 411 IPC
PS Hari Nagar Delhi
Unique Case ID Number : 02401R0470372009
JUDGMENT
Serial No. of the case 1733/II/09
Date of commission of offence 18.10.2008
Date of institution of the case 09.10.2009
Name of the complainant Suresh s/o Sh. Madan Singh
Name of accused, parentage & Suresh Kumar Sahu s/o Late Sh.
address Ram Iqbal r/o 86, New Indra
Complex, Nehar Par, Old Faridabad
Offence complained or proved Section 411 IPC
Plea of the accused Pleaded not guilty
Date of arguments 14.01.2013
Final order Acquitted
Date of Judgment 14.01.2013
1. Vide this judgment I shall dispose off the present case filed by ASI Satbir Singh on the complaint of Sh. Suresh Singh against the accused Suresh Kumar Sahu for committing offences under section 380/411 of Indian Penal Code (hereinafter referred as IPC). BRIEF FACTS:
2. Briefly stated facts of the case are that in the intervening night of FIR No. 194/08 PS Hari Nagar Page No. 1 of 6 21/22.05.2008 a burglary was committed in the shop of the complainant and some mobile phones were stolen. Complainant lodged a complaint on 22.05.2008 which became the basis of registration of FIR No. 194/08. Investigation was handed over to ASI Satbir Singh. Crime scene was inspected by the crime team and dog squad. After some investigation, an untrace report was filed by the IO.
Subsequently on the basis of call details of the stolen mobile phones, accused was arrested. Case properties were recovered from the possession of accused on 18.10.2008.
3. After completion of investigation, charge sheet was filed under sections 380/411 IPC against the accused on 09.10.2009. Copies under section 207 CrPC supplied to accused on 06.01.2011. Charge for the offence under section 411 IPC was framed against accused on 03.03.2011 to which he pleaded not guilty and claimed trial. Thereafter matter was put up for prosecution evidence. EVIDENCE RECORDED DURING TRIAL:
4. Prosecution has examined four witnesses to prove its case against the accused.
5. PW1 ASI Balkishan exhibited copy of FIR as Ex. PW1/A and endorsement on rukka as Ex. PW1/B.
6. PW2 ASI Umed Singh stated that on 18.10.2008, he was assigned the investigation of the present case. He went to Old Faridabad Haryana FIR No. 194/08 PS Hari Nagar Page No. 2 of 6 alongwith HC Bijender near New Indira complex, Nehar Par for the recovery of stolen mobile phones and they apprehended the accused who made a disclosure statement regarding commission of theft of mobile phones. His disclosure statement is Ex. PW2/A. Five mobile phones were recovered which were seized vide seizure memo which is Ex. PW2/B. He arrested the accused vide arrest memo which is Ex. PW2/C and conducted his personal search vide personal search memo which is Ex. PW2/D. All the phones are collectively exhibited as Ex. P1.
In his cross examination he stated that three phones were recovered from the pocket of the accused and two were recovered from his house. He admitted that few persons were present at the time of recovery but they refused to join the investigation. He admitted that last digit of IMEI numbers of four phones out of the recovered five are different in the seizure memo in comparison to the number mentioned on the phones.
7. PW3 Ct. Baljeet Singh deposed that on 22.05.2008 he accompanied the IO to the spot and got the FIR registered.
8. PW4 ASI Satbir Singh, who has been examined inadvertently as PW5, stated that after receiving DD entry No. 14A, he visited the spot and found the complainant at the spot. Complainant gave his FIR No. 194/08 PS Hari Nagar Page No. 3 of 6 complaint which is Ex. PW5/A. He prepared the rukka and got the FIR registered through Ct. Baljeet. He prepared the site plan which is Ex. PW5/B. Crime team was called at the spot who lifted the finger prints but same did not match and no report has been placed on record in this regard. He made a request for surveillance of the stolen mobile phones and his request is Ex. PW5/C. He could not identify the case property and the accused as he was arrested by the second IO. He stated that despite his best efforts he could not trace complainant Suresh Singh and exhibited report on summons as Ex. PW5/D1 and Ex. PW5/D2.
9. Prosecution evidence was closed today as prosecution has failed to examine the complainant in the witness box despite several opportunities. He could not be examined as his present whereabouts are not known. Therefore, keeping in view the fact that remaining other witnesses are formal in nature and examining them would be futile exercise, prosecution evidence stands closed. Statement of accused under section 281 read with 313 CrPC also recorded today itself in which all the incriminating evidence put to the accused to which he denied in toto. He opted not to lead defence evidence.
10.I have heard the final arguments put forth by ld. APP for the State and Ld. Defence Counsel.
FIR No. 194/08 PS Hari Nagar Page No. 4 of 6 BRIEF REASONS FOR THE DECISION:
11. It is the case of the prosecution that accused committed theft in Shop No. WZ906, Planet 'M' Fateh Nagar Jail Road, in the intervening night of 21/22.05.2008 and later on stolen phones were recovered from his possession on 18.10.2008. Charge under section 411 IPC has been framed against the accused. To prove the charge against the accused prosecution is bound to prove the case property during the trial. Case property has been exhibited as Ex. P1 during the deposition of PW2 but there is a court observation that out of the five mobile phones, which allegedly have been recovered from the accused, four mobile phones were having different last digit in their IMEI numbers in comparison to the seizure memo. Therefore, difference in last digit of the four mobile phones creates doubt that stolen property recovered from the possession of the accused is the same which was stolen from the shops. The seal was in broken condition when the case property was produced before the court. So, possibility of tampering with the case property cannot be ruled out and that goes into the favour of the accused.
12.Prosecution has also failed to examine the complainant in the witness box. Moreover, IO has not placed on record the ownership proof of the stolen mobile phones. So, it is further under suspicion whether same mobile phones were stolen on that night or not which had been FIR No. 194/08 PS Hari Nagar Page No. 5 of 6 allegedly recovered from the accused.
13.Crime team had inspected the spot but IO has not placed on record any finger print comparison report to prove the presence of the accused at the shop on the date of offence. It is not out of context to discuss that at the time of recovery no public person has been joined as a witness in the proceedings.
14. Hence, when non examination of complainant in the witness box, broken condition of the seal on the case property, absence of ownership documents of the case property, difference in last digit in IMEI numbers of four mobile phones with comparison to seizure memo, non joining of public persons in the recovery proceedings and absence of any finger print comparison report, when kept in juxta to each other, it creates a serious doubt in the prosecution version.
15.Hence, keeping in view the above discussion and the material available on record, I am of the considered view that prosecution has failed to prove the case against the accused beyond reasonable doubt. Therefore, accused Suresh Kumar Sahu is hereby exonerated for committing offence under section 411 IPC.
ANNOUNCED IN THE OPEN COURT DHIRENDRA RANA
ON 14th January, 2013 MM02/WEST DELHI
FIR No. 194/08 PS Hari Nagar Page No. 6 of 6